COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73897 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : DAMON BROWN : OPINION : Defendant-Appellant : Date of Announcement of Decision: DECEMBER 17, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-352805 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MARK MAJER, Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES D. INGALLS, ESQ. 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Defendant-appellant Damon Brown appeals from his convictions following a jury trial for trafficking in marijuana (R.C. 2925.03) and possession of criminal tools (R.C. 2923.24). Defendant claims that the convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. Defendant also claims the trial court abused its discretion in admitting evidence and in imposing sentence. We find no error and affirm. On May 4, 1997, Cleveland Police Officers Martin Gray and Jonathan Moran arrested defendant and one Johnny Green. The arrest occurred at E. 72nd Street near the entrance to Gordon Park when Johnny Green drove his car over the grass to avoid heavy traffic. Upon seeing this traffic violation, the officers pulled Green's car over. The officers then observed a furtive movement in the car and ordered the defendant to drop it. The defendant then dropped a bag containing 2.64 grams of marijuana. He was patted down and the officer found $60.00 on him. During the inventory of the car, Officer Moran found a camcorder in the backseat. The camcorder had a built in video screen. The officer viewed the tape and remarked "who would tape this." In response, the defendant admitted he taped a drug deal involving Green. The video displayed a drug transaction between Green and an unidentified individual. When Green was patted down, he was found to be carrying $590 in cash and a large bag of marijuana (86.09 grams). -3- After trial to a jury, the defendant was found guilty on two counts and this appeal ensued. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE TRIAL COURT'S DENIAL OF APPELLANT'S RULE 29 MOTION FOR ACQUITTAL REGARDING COUNTS ONE AND THREE OF THE INDICTMENT VIOLATED APPELLANT'S RIGHT TO DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BECAUSE THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT THE CAMCORDER AND U.S. CURRENCY WERE, UNDER THE CIRCUMSTANCES, INTENDED FOR USE IN THE COMMISSION OF A FELONY AS DEFINED UNDER OHIO REVISED CODE SECTION 2923.24. II. THE TRIAL COURT'S DENIAL OF APPELLANT'S RULE 29 MOTION FOR ACQUITTAL REGARDING COUNT ONE OF THE INDICTMENT VIOLATED APPELLANT'S RIGHT TO DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BECAUSE THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT APPELLANT VIOLATED OHIO REVISED CODE SECTION 2925.03(A). V. APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. These assignments of error will be considered together because they address similar issues. The standard of review we must observe in passing on sufficiency of the evidence and manifest weight of the evidence issues were set forth by the Supreme Court of Ohio as follows in State v. Thompkins (1997), 78 Ohio St.3d 380, 386-87: The state asserts that sufficiency of the evidence and weight of the evidence are synonymous legal concepts. They are not. The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. -4- With respect to sufficiency of the evidence, `sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6 Ed.1990) 1433. See, also, Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain a conviction). In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict, is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388- 389, 124 N.E.2d at 149. Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's supra, at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State -5- v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ). Defendant argues that the possession of the camcorder with a tape recording of a drug deal does not constitute possession of a criminal tool. We disagree. The burden is on the State under R.C. 2923.24(B)(3) to show possession or control of any substance, device, instrument, or article commonly used for criminal purposes under circumstances indicating such item is intended for criminal use. In State v. Flowers(1984), 16 Ohio App.3d 313, 314, the court held intent may be inferred from surrounding facts and circumstances. The evidence and circumstances in the instant case showed that defendant used the video tape to record drug deals done by the driver (Johnny Green) of the automobile defendant was in. Based on this evidence, the jury could reasonably infer that defendant intended to use the video tape as a record of drug transactions and buyers, to identify undercover police officers or other informants. We find that there was sufficient evidence that this tape was used by the drug dealers for criminal purposes and that they were benefitted by it. The jury reasonably concluded that the tape aided their sale of narcotics. -6- Defendant further argues that there is no proof he operated the camcorder. Officer Moran testified that defendant told him that he was the one who taped the drug transaction involving Green. Defendant, on the other hand, testified that he never admitted to taping the drug transaction. The weight to be given evidence and the credibility of witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. Accordingly, even though there is conflicting testimony regarding whether defendant admitted to taping the transaction with the camcorder, the credibility of the witnesses was for the trier of fact to determine. Based on this evidence, the jury concluded that defendant was the cameraman. It is also argued that the State failed to present sufficient evidence that defendant was in possession of $60.00. However, the direct testimony of the arresting officers indicated defendant was in possession of $60.00 at the time he was arrested. This was adequate to show possession. The defense also argues that the possession of money does not show an intent to use it criminally. R.C. 2923.24(A) states: No person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally. R.C. 2923.24(B)(3) further states that the possession of an article commonly used for criminal purposes when coupled with circumstances indicating the item is intended for criminal use is evidence of a criminal purpose. -7- In the case at bar, the defendant was in possession of $60.00 after taping a drug deal in which narcotics were exchanged for money. It was reasonable for the jury to infer that the money defendant had was the fruits of the drug sale. Defense counsel argues that the State failed to produce evidence beyond a reasonable doubt of the defendant's involvement to sustain a conviction for trafficking in drugs under R.C. 2925.03. In the case at bar, the trier of fact was entitled to review the evidence and draw all reasonable inferences. It was a reasonable inference for a jury to make that a person video taping a drug deal is involved in the transaction. It is also a reasonable inference to find that someone who has $60.00, along with a bag of drugs, on his person received that money from drug sales he admittedly taped earlier that same day. Construing this evidence in a light most favorable to the prosecution, reasonable minds could come to the conclusion that the elements of trafficking and possession of criminal tools were proven beyond a reasonable doubt. Accordingly, the trial court did not err in denying defendant's motion for acquittal. It is also clear there was sufficient evidence to sustain a conviction for the crimes charged. For the same reasons, the jury's verdict was not against the manifest weight of the evidence. Defendant's Assignments of Error I, II and V are overruled. III. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING APPELLEE'S TRIAL EXHIBIT NUMBER THREE (3) INTO EVIDENCE BECAUSE THE PROBATIVE VALUE OF SUCH EVIDENCE WAS SUBSTANTIALLY OUTWEIGHED BY ITS PREJUDICIAL EFFECT. -8- The defense claims that the introduction of the large bag of marijuana co-defendant Green possessed was unfairly prejudicial. The admission and exclusion of evidence is within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus. The term abuse of discretion connotes more than an error of law or judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio St.3d 410, 413, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157. R.C. 2923.03(A)(2) provides that no person, acting with the kind of culpability required for the commission of an offense, shall *** aid or abet another in committing the offense. Accomplices found guilty of aiding and abetting another in committing an offense are prosecuted and punished as if they were the principal offenders. R.C. 2903.03(F). Aiding and abetting may be demonstrated by direct or circumstantial evidence and can be inferred from presence companionship and conduct before and after the offense is committed. State v. Cartellone (1981), 3 Ohio App.3d 145, 150. Furthermore, R.C. 2923.03(C) specifically states that no person shall be convicted of complicity under this section unless an offense is actually committed. Under the complicity statute, in order for defendant to be convicted of aiding and abetting in the trafficking of drugs, the State must first establish that the offense of drug trafficking had actually been committed. To establish this offense, the State -9- admitted into evidence the large bag of marijuana found in Green's possession at the time of the arrest. Defendant's presence and conduct in videotaping the transactions infer that he participated in the criminal intent to sell the drugs. The State's introduction of the large bag of marijuana was direct evidence that the trafficking of drugs was being committed in that car on that day. Proof of this offense was necessary in order to convict defendant of aiding and abetting the offense. Therefore, the trial court's admission of the large quantity of drugs found in the car was not unreasonable, arbitrary or unconscionable so as to constitute an abuse of discretion. Defendant's Assignment of Error III is overruled. IV. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO SIX MONTHS IN THE LORAIN CORRECTIONAL INSTITUTION FOR HIS CONVICTION ON COUNT ONE (DRUG TRAFFICKING) BECAUSE THE TRIAL COURT FAILED TO CONSIDER THE STATUTORY CRITERIA STATED UNDER REVISED CODE SECTION 2929.12. Defendant argues that he was improperly sentenced and therefore judgment and sentence must be reversed. Defendant asserts that the trial court originally imposed a three year community control sanction on his drug trafficking count. He asserts that the court then retracted this sanction and imposed a six month prison term to be served consecutively to the six month term imposed on the possession of criminal tools count. Defendant asserts that the trial court abused its discretion by imposing a six month sentence on the drug trafficking count without considering the statutory factors set forth in R.C. -10- 2929.12. This section provides that a court that imposes a sentence on an offender for a felony shall consider the seriousness of the conduct and the likelihood of the offender's recidivism and may consider any other relevant factor. However, even though the record is silent as to whether these factors were considered by the trial court, the imposition of defendant's sentence was proper. The trial court is not required to make a statement that it has considered the factors set forth in R.C. 2929.12. State v. Cyrus (1992), 63 Ohio St.3d 164. Absent such a statement, the trial court is presumed to have considered the factors set forth in this section. State v. Adams (1988), 37 Ohio St.3d 295. Accordingly, the trial court is presumed to have considered these factors when it imposed defendant's six month sentence for drug trafficking. Defendant's assertion is without merit. Furthermore, the determination as to whether a prison term or a community control sanction is appropriate is within the sound discretion of the trial court. State v. Ditterline (Sept. 5, 1997), Washington App. No. 96CA47, unreported. In Ditterline, the court stated: The Ohio General Assembly clearly left it to the sound discretion of the trial court to determine whether prison or a community control sanction is more consistent with the principles and purposes of R.C. Chapter 2929. Its decision on that point should not be reversed absent a showing of an abuse of discretion. An abuse of discretion is more that an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Clark (1994), 71 Ohio St.3d 466, 470, 644 N.E.2d -11- 331; State v. Moreland (1990), 50 Ohio St.3d 58, 61, 552 N.E.2d 894; State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. In order to have an abuse of discretion, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256, 662 N.E.2d 1. Moreover, when applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe I (1991), 57 Ohio St.3d 135, 138, 566 N.E.2d 1181; Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301. Trafficking in drugs under R.C. 2925.03 is a felony of the fifth degree. Pursuant to R.C. 2929.14(A)(5), the prison term for a fifth degree felony is 6, 7, 8, 9, 10, 11 or 12 months. We find that the trial court did not abuse its discretion in imposing the minimum six month prison term rather than a community control sanction. The record reflects that the trial judge reviewed defendant's presentence investigation report prior to imposing sentence. The judge subsequently imposed the minimum prison sentence rather than a three year community control sanction. The imposition of this sentence did not constitute an abuse of discretion. We also find that the evidence establishes that defendant's sentence was proper and not excessive. Under R.C. 2953.08(G)(1)(a), this Court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the trial court for re- -12- sentencing if the court clearly and convincingly finds *** that the record does not support the sentence. In the instant case, the trial court imposed the minimum sentence upon defendant. At the time of his arrest, defendant was found with only a small amount of marijuana and $60 in his possession. He then admitted to videotaping Green's drug transaction. Defendant was found guilty of aiding and abetting Green in drug trafficking pursuant to R.C. 2923.03(A)(2). Under R.C. 2903.03(F), accomplices found guilty of aiding and abetting another in committing an offense are prosecuted and punished as if they were the principal offenders. Based on this evidence, the six month prison term was appropriate. We cannot clearly and convincingly find that this sentence is not supported by the record. Therefore, the trial court's sentence was supported by the record and was not an abuse of discretion. Defendant's Assignment of Error IV is overruled. Judgment affirmed. -13- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, J., and SPELLACY, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .